The United States, along with many other countries, is experiencing a well-documented demographic shift wherein the average age of the population has been increasing. Given the population explosion of the post-World War II Baby Boom, the fact that adults have been reproducing at a lower rate than in previous decades, and general advances in health sciences that tend to keep people alive longer, this country has witnessed an overall “graying” of its people. This phenomenon is often debated and explained with regard to Social Security, Medicare and Medicaid, and the labor market, but it is also increasingly relevant to consumer law.
This brief article is concerned with consumer law and definitions of “elder” in that regard. The Kansas Consumer Protection Act (“KCPA”), which broadly protects consumers who do business in Kansas, explicitly defines an “elder person” as someone 60 years of age or older. An elder person is a protected consumer under the KCPA, which means he or she is entitled to enhanced penalties ($20,000 per violation rather than $10,000) under the KCPA. The State of Missouri likewise defines “elder” as being 60 years of age.
It bears mentioning that any number of people who are 60 or older may not consider themselves elderly and have suffered little diminished capacity. However, given the overall demographic trend of an aging populace, this country is dealing with increased complications caused by advancing age. Alzheimer’s and dementia, for example, only occur later in life. These illnesses generally leave their victims with significantly impaired cognitive abilities. Likewise, people with Alzheimer’s and dementia can very easily become prey to deceptive and unconscionable acts by businesses.
Elder Abuse and Consumer Law: The Issues
Consider that Baby Boomers currently control around $40 trillion in assets. Consider also that the world has become more complicated for many Boomers, for varied reasons: being forced to put off retirement, skyrocketing health care costs, exponentially more fine print and potential for deception in all kinds of financial dealings, unstable pension funds and 401(k)s, etc. The natural result of this is a large cohort controlling a huge aggregate amount of wealth that is increasingly vulnerable (the people and the wealth).
According to this National Center on Elder Abuse fact sheet, which cites various studies, elder abuse is very widespread, affecting millions of elders, but is generally underreported and under-analyzed. Further, financial exploitation of elders seems to be particularly underreported.
Many people of all ages aren’t particularly knowledgeable when it comes to their rights as consumers, but it’s safe to say that consumers generally become more vulnerable to improper conduct by businesses when they reach increasingly advanced ages. Further, this needn’t be the result of a serious malady, such as Alzheimer’s. It may be the result of abandonment and loneliness, physical impairment, or a simple willingness to trust. Elderly people will also generally be less prone to receive updated information about new types of consumer scams. Further, the negative effects of elder abuse in this regard will be exacerbated among elders who live on a fixed income and/or are relatively isolated, as they may well not know where to seek recourse, worry about the cost of litigation, and perhaps not even be aware that they’ve been taken advantage of.
Elder Abuse and Consumer Law: Potential Solutions
Specific law regarding elder abuse in the consumer context varies from state to state. Kansas, as mentioned, explicitly authorizes increased penalties against businesses that violate people over the age of 60. California, for example, instituted a broad Elder Abuse Act that specifically deals with financial abuse of older consumers. Generally, consumer law is concerned with protecting consumers from abuses by businesses and recognizes that elders are often in need of heightened protection. Therefore, while a given consumer-related statute may not specifically address age, it will almost certainly be considered by a judge or arbitrator when assessing the merits of a case and potential damages.
The problem of elder abuse is widespread and will require participation from many segments of society to help reduce it. In terms of consumer law, it is important to state that an elder, just like a non-elder, should have a solid case before actually pursuing litigation. Just because someone is, for example, 70 years old does not inherently mean that a given business has deceived them during a given transaction. However, depending upon the nature of the case, there is, as stated, reason to believe that an elder would be awarded greater damages- this is a statutory fact under the KCPA.
If an elder feels at all vulnerable when making consumer transactions, then it is, of course, ideal if a trusted and competent younger person is there to advise and help protect them. If an elder should happen to be afflicted with a serious impairment such as Alzheimer’s, then trusted family members and/or friends should discuss things like a guardianship/conservatorship and power of attorney. These are important decisions and, if a loved one has Alzheimer’s or dementia, essential- it is simply not possible for someone with such an impairment to navigate their own transactions over the longer term. As always, keep all records related to a transaction. If an elder has been taken advantage of, robust record keeping can often help prove it.
It is imperative that elders have trusted people with whom to speak. An elder may feel afraid, ashamed, and/or powerless if they’ve been taken advantage of. It can be extremely helpful if, for example, a grandson or granddaughter accompanies a grandparent to purchase a car. Financial documents pertaining to things like reverse mortgages should be reviewed very carefully and kept. If an elder believes they’ve been violated by a business, it can likewise be helpful if a trusted family member or friend helps them meet with attorneys to discuss options. If you’re an elder, or know an elder, who believes they’ve been taken advantage of in a consumer transaction, please feel free to contact Bell Law to discuss your options.